Excerpts from the
Manuscript.
The sample chapters on
this website have been taken from the final manuscript draft. Due to minor
editorial changes and different copyright regimes on electronic and print
media, the images and text here may vary slightly from that in the
published work. The explanatory notes will also be a bit different, as these are
added as they appear needed.
For a quick background to the history of
this book, see the Author's
Preface.
Choice of Excerpts:
Many issues arising from
the republican debate have been badly neglected in the media's reporting:
the nature of the reserve powers of the Crown, the necessity of such
powers in a parliamentary democracy (be it republic or monarchy), the way
the appointment of their wielder fundamentally alters their use or misuse;
the capacity of Buckingham Palace to act as an intermediary within and
behind the scenes of conflicting realms; the role of shared symbols and
institutions among countries in dampening destructive nationalism. Yet
perhaps the most important topic neglected is the Crown's role in
preserving the day-to-day liberty of citizens: the meaning
of the phrase "Her Majesty's Prison", the implications of
the emblem of the Crown on military and police uniforms, the way 17th
Century political doctrines hold application in modern unlawful orders in
the chain of command. This matter was considered crucial in the first half of the 20th
Century, particularly during the Great Depression, and appears in the
writings of Professor Dicey, Lord Hewart (the Lord Chief Justice of
England in 1929), Sir Ivor Jennings LLD and Brigadier Sir Victor Windeyer
(a Justice of the High Court of Australia after World War II).
Yet
it appears to have died out in ordinary legal texts in the 1950s, and many
lawyers now appear entirely innocent of this body of political, historical
and legal precedent. (The only practising ones the author has spoken to
who have referred to it have been military lawyers and Judges Advocate, as
this body of precedent remains dominant in the military legal context.)
But awareness of these arguments is critical to any citizens who
value their personal liberty and the rule of law, particularly in this era
of economic rationalism and privatisation of many of the former
instruments of government.
These legal principles operate in a
completely different manner to US-style declarations of "fundamental
rights": they constrain the Executive's source of authority, rather
than the way that authority is imposed upon the citizenry. Consequently,
the Crown can provide effective constraints under conditions where
judicial interpretations of rights may not be effective (and vice
versa).
Of course, a country need not be forced
into an exclusive choice between the Crown or
declarations of rights: Canada, for instance, has both.
Hence the following articles are reproduced from
the chapter Her Majesty's Government:
(Outlining the Westminster
history and modern legal
implications surrounding
the term "servants of the Crown" or "Her Majesty's servants"
as defined in the courts,
especially disobediance of unlawful orders. The result is a higher
level of accountability than that of equivalent
hierarchies in the US or France. Discussion of
relevance to emblems, such as the Crown on uniforms of the coercive
instruments of State -- the police, armed forces and other services
wielding coercive power, such as the fire brigade and prison
wardens.)
(Outlining what happens in even a
common-law republic with strong democratic traditions, such as the
United States, in the absence of these historical safeguards: Tea Pot
Dome, Watergate and Iran-Contra. Testimony before and assessments by the
Congressional committees of inquiry, and the verdict of the American
Civil Liberties Union.)
(When gross illegality occurs within the
Westminster system, what safeguards are there different to those of
the US or European republics? One of the core problems with the US
Constitution identified by the American Civil Liberties Union after
Watergate, was that there was nobody within the Executive to whom a
"lower-echelon official with a troubled conscience" could turn, as all
members of the Executive were tainted by a shared self interest in the
survival of the Administration, so executive safeguards were all
inherently ineffective. This problem of course still persists.
An interesting comparison exists with
the Crown in the Westminster system. As was starkly demonstrated in
New South Wales in 1932, the Queen's representative is a potent observer
of executive government by democratically elected politicians.
Although such viceregal representatives are usually publicly
quiescent, in the event of an extreme crisis such as gross
lawlessness they can act to force that crisis to the floor of
the elected lower House of Parliament, or to the voting public, to
resolve. If the conventions of ministerial accountability are properly
understood, this should be seen as a support to democratic parliamentary
government. In the modern era, with discussions of appropriate
whistle-blowing mechanisms for civil servants, this is a long-neglected
safeguard: it enables a "lower-echelon official with a troubled
conscience" to alert someone within the Executive whose interests are
distinct from the Prime Minister's or electoral popularity, without
violating the Official Secrets
Act.)
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Author's Notes:
During the republican
debate I became frustrated by the level of ignorance of key issues
displayed by the media (and indeed by a number of law
lecturers).
Precisely at a time when the general public is
concerned about safeguards on executive power and
accountability, an entire body of Executive safeguards— the
Crown and its warning emblems— has become neglected and
unfashionable.
The presence of the Crown and its safeguards
was discussed during the Depression by the leading legal scholars of
the time, and appears to have been a significant reason why
the Westminster democracies of the UK and "Dominions" did not
collapse into autocracy during that emergency the way the European
democracies did. (Remember that France, for example, had collapsed into
self-imposed autocracy two years before the Nazis marched into Paris).
In this current era of the "War against Terror", when enormous
power is voted to the servants of the Executive to protect national
security, these safeguards should once again be a topic of public
knowledge and debate, especially when some members of the public and media
seem determined to dismantle them completely in the name of
"modernising".
Further
background reading:
Greenwood, N.J.C, For the
Sovereignty of the People (Australian Academic Press,
1999);
The following books may also be of interest
(see Sovereignty's bibliography for a full
listing):
Dicey, A.V., An
Introduction to the Study of the Law of the Constitution (10th ed.),
Macmillan, London 1959;
Hewart, 1st Viscount (Hewart,
G.), The New Despotism, Ernest Benn, London
1929;
Jennings, W.I., Cabinet Government, Cambridge
University Press, London 1936;
Jennings, W.I., The Law and the
Constitution (3rd ed.), University of London Press,
1943.
Windeyer, W.J.V, Lectures on Legal History (2nd ed.)
Law Book Company of Australasia, Australia
1949.
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